Finnan v Catrupi [2002] NSWSC 569

New South Wales Supreme Court

CITATION : Finnan v Catrupi [2002] NSWSC 569 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13178/01 HEARING DATE(S) : 13/6/02 JUDGMENT DATE : 26 June 2002

PARTIES : Malcolm FINNAN - Plaintiff Raymond Vincent CUTRUPI (Commonwealth Services Delivery Agency - Defendant JUDGMENT OF : Mathews AJ

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Mr G Johnson JUDICIAL OFFICER :

COUNSEL : C Waterstreet - Plaintiff I Bourke - Defendant SOLICITORS : Stephen Hodges Commonwealth Diector of Public Prosecutions CATCHWORDS : Appellant convicted of knowingly receiving overpayments of Social Security benefits - basis upon which overpayments calculated - extent of knowledge required. Social Security Act (Commonwealth) 1001 LEGISLATION CITED : Justices Act 1902 Income Tax Assessment Act 1936 DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MATHEWS AJ

26 June 2002

13178/01 Malcolm FINNAN v Raymond Vincent CUTRUPI (COMMONWEALTH SERVICES DELIVERY AGENCY)

JUDGMENT

1 HER HONOUR: On 16 March 2000 the appellant was charged with five counts under s 1347 of the Social Security Act (Commonwealth) 1991 ("the Act"). Four of the charges (the first, second, third and fifth charges) alleged that on various dates the appellant knowingly obtained payment of a social security payment under the Act which was only payable in part. A further charge (the fourth charge) alleged that the appellant knowingly obtained payment of an instalment of a social security payment which was not payable. On 11 September 2001, following a three day hearing, Mr G Johnson, Magistrate, in a reserved decision, found each of the offences proved beyond reasonable doubt. The appellant has appealed to this Court under s 104 of the Justices Act 1902 claiming that the Magistrate's finding in each case was wrong in law and that his decision cannot be supported having regard to the evidence. 2 The facts of the matter can be stated briefly. Between 5 January 1995 and 13 January 1999 the defendant received a Newstart Allowance under the Act. Applicants for Newstart Allowance were routinely advised of the necessity to inform the Department of any income received from external sources as this would affect the rate of payment under the Newstart scheme. In addition, the appellant was required to lodge regular applications for payment of his allowance. Eight of these were in evidence before the Magistrate. Each included a question as to whether the applicant had been working during the relevant period. On each of the eight forms which was before the Magistrate the appellant had answered these questions in the negative. 3 In fact, the appellant had worked for The Ecology Lab Pty Limited, ("The Ecology Lab") apparently as a sub-contractor, between 14 January 1998 and 13 January 1999 with a gross income of $12,158.75. Between 14 August 1998 and 30 December 1998 he had worked, apparently again as a sub-contractor, for CPF Gas & Plumbing Pty Limited ("CPF Gas") for which he had received a gross income of $5,000. 4 On 13 August 1999, on the basis of the figures which had been provided to it, the Department calculated the amounts by which it said the appellant had been overpaid his Newstart Allowance. The calculations were assessed on a fortnightly basis. The documents containing these calculations were before the Magistrate. 5 On 14 September 1999 the Department wrote to the appellant, under the "Centrelink" letterhead, informing him of the overpayment. As relevant here, the letter was in the following terms: "Dear Mr Finnan I am writing to advise that you have been paid money by Centrelink which you were not entitled to receive. This occurred because of your income from employment with The Ecology Lab P/L from 14/1/98 to 13/1/99 (total gross income $12,158.75), and CPS Gas & Plumbing P/L from 14/8/98 to 30/12/98 (total gross income $5000.00). As we have now combined your income from both the above employers the debt that was originally raised for $968.60 debt No 28132032) has been amended to a nil amount and the money you paid off this debt has been taken off your new debt (debt No 28153794). AMOUNT OWED A debt of $6,369.07 has been calculated and this amount is legally recoverable under Section 1224 of the Social Security Act 1991. If you do not agree that you have a debt, or that the debt should be recovered, and you wish to discuss this, please phone Newstart Data Match Officer on 02 92086648. She will be able to listen to your questions and explain things about your overpayment that are not clear. She also has the power to change the decision, if it is incorrect. HOW TO PAY BACK THE DEBT Could you please pay the amount as quickly as possible. Preferably, you should pay all of it on or before 29 September 1999."